By Gerald L. Maatman, Jr., Jennifer Riley, Alex S. Oxyer, Paul M. Waldera

Seyfarth Synopsis: In Rusis, et al. v. Int’l Bus. Machines Corp., No. 18 Civ. 8434, 2020 WL 1151322, at *2 (S.D.N.Y. Mar. 10, 2020), the U.S. District Court for the Southern District of New York recently declined to conditionally certify a nationwide collective action brought against IBM on behalf of all employees over the age of 40, and in the process cast doubt of the availability of nationwide collective actions as a whole in this context. The Court ultimately found that the plaintiffs had failed to demonstrate the existence of any glue that bound the putative collective class together.  The ruling is an important guidepost for employers facing these types of lawsuit.

Case Background

In Rusis, four former employees filed a collective action alleging violations of the Age Discrimination in Employment Act (“ADEA”). Plaintiffs asserted that IBM implemented a “company-wide effort to replace older employees with younger hires” that discriminated against all IBM employees over 40 and forced them to depart because of their age. Id. at *3. According to the plaintiffs, IBM used several methods to reduce its older worker population, including terminating older employees for pretextual reasons, constructively discharging employees over 40, or imposing unreasonable conditions on their continued employment, all the while shielding younger employees in the company from similar conditions.  The plaintiffs also pointed to efforts by the company to compete in emerging technology spaces and the company’s encouragement for employees to “embrace the Millennial mindset” as further evidence of age discrimination. Id. Critically, the named plaintiffs all worked in different positions at separate IBM locations in four different states, including California, North Carolina, Georgia, and New Jersey. Id. at *4.

The Court’s Decision

In its opinion, the Court considered the plaintiffs’ motion for the issuance of notice to members of the putative collective action. At the notice stage in a putative ADEA collective action, a plaintiff needs to make a “make a modest factual showing that the plaintiffs and potential opt-in plaintiffs together were victims of a common policy or plan that violated the law.”  Id. The Court held that while the burden at this stage is modest, “it is not non-existent” and “generally cannot be satisfied by unsupported assertions.”  Id..  In an ADEA case, when the court has a more developed record “the named plaintiffs must prove that the plaintiffs who have opted in are, in fact, similarly situated to the named plaintiffs and were all subject to the same illegal employment practice such that their cases can all be tried together.”  Id.

The Court opined that the Plaintiffs failed to meet their burden of tying all former employees over the age of 40 to a common policy or plan.  The District Court evaluated the plaintiffs’ proposed collective action in terms of “whether the plaintiffs are employed in the same corporate department, division and location; whether they advanced similar claims of age discrimination; [and whether they] had similar salaries and circumstances of employment.”  Id. The Court concluded that that plaintiffs’ motion failed under all of these factors.

In support of their motion, the plaintiffs submitted 15 affidavits from former employees.  Each affidavit described a particular incident of alleged age discrimination at different locations, divisions, seniority levels, and job functions.  The Court rejected this proof. It determined that each alleged case of age discrimination had a different decision-maker.

The Court ruled that the various allegations between the different affidavits, on their face, did not preclude Plaintiffs’ from proceeding as a collective action.  Rather, the affidavits, taken as a whole, did not meet the minimal showing that a common plan or policy existed to replace older workers with younger workers.  Read together, the Court found that the affidavits contained very little evidence connecting one act of alleged discrimination to another. The Court also discounted a blanket, copy-and-paste assertion from affiants that “[b]ased on [their] conversations with other current and former IBM employees, [they] expect that there are many other employees over the age of forty (40) who have lost or will shortly lose their jobs at IBM, who would be interested in joining the case if notified of their right to do so.”   Id. at *3-4. The Court held that “vague allusions to conversations with co-workers do not support conditional certification.” Id. at *4.

The Court also rejected other tangential evidence provided by the plaintiffs.  To support their motion, the plaintiffs submitted an article by ProPublica and two documents referenced in that article that reported that IBM believed emerging technologies are “driven by Millennial traits” and that IBM “sought to sharply increase hiring of people born after 1980.” Id. at *5.  The Court declined to rely on the article because it was not based on sworn testimony of an affiant, but rather based on “subjective synthesis of various statistics, IBM documents, and employee statements by individuals whose journalistic credentials are unknown to the Court.” Id.  The Court also rejected an internal IBM document from 2006 that used the terms “gray hairs” and “old heads,” as well as a presentation document entitled “Reinvention in the Age of the Millennial.”  Id. The Court found that none of these documents contained any evidence of an actual plan to replace older workers with younger ones.

Ultimately, the Court denied the plaintiffs’ motion to issue notice to the members of the putative collective action on a nationwide basis because they failed to show that the putative collective action members were alike in “ways that matter to the disposition of their claims.” Id. at *6.

Implications for Employers

Rusis provides strong support for any employer seeking to defeat certification for a nationwide ADEA collective action.  While the Court did not shut the door on ever certifying a nationwide collective action, it is incumbent on plaintiffs to show more evidence and support to prosecute a nationwide common policy or practice than just a few company documents and conclusory testimony.